December 6, 2016, PLLR E-Newsletter

The plaintiffs alleged that the restaurant sold the food in a defective condition and negligently permitted a loose wire bristle to enter the area where food was being prepared. The plaintiffs won a verdict of about $1.29 million. Brettv. 44th St. Rest. LLC.

Barry Brett, a retired attorney, and his wife, Leslie, went to dinner at DB Bistro Moderne, a New York City restaurant. As Brett was eating, he felt something odd as he swallowed. He stopped eating immediately, and he and his wife left soon after. Four days later, when his throat continued hurting, he sought medical assistance. Doctors found that a foreign body was lodged in, and had perforated, his esophagus.

Brett, 75, underwent emergency surgery, including an esophagoscopy and removal of the object, which was determined to be a 2.5-cm wire bristle from a grill-cleaning brush. He also required an incision and drainage of an abscess. He suffered a massive, nearly fatal infection, requiring intravenous (IV) antibiotics, and he remained in the hospital’s intensive care unit for five days. After his discharge, he required continued IV antibiotics at home and assistance from a home health care nurse. Medicare covered most of his past medical expenses, which exceeded $300,000, and the remaining expenses were stipulated to be $20,700.

As a result of the incident, Brett has scarring to neck and throat and continues to feel some discomfort. He also suffers ongoing emotional concerns that affect his ability to enjoy eating normally, as he fears another similar incident.

Brett and his wife sued the restaurant, alleging that it sold the food in a defective condition; negligently permitted a loose wire bristle to enter the area where food was prepared; breached the implied warranties of merchantability and fitness for the intended purpose; and acted recklessly in failing to have any rules, regulations, policies, procedures, or guidelines to prevent a shedding wire bristle from entering food, particularly in light of a prior CDC warning that shedding wire bristle brushes are dangerous and should not be used in or around food preparation.

The defendant argued that Brett failed to mitigate his injuries by not seeking medical care earlier. A defense expert testified that Brett could have prevented the infection by obtaining treatment within 24 hours of the incident.

The jury awarded about $1.47 million, including $1 million in punitive damages; $450,000 for Brett’s past pain and suffering and $5,000 for his future pain and suffering; and $10,000 to his wife for her past loss of consortium and $1,000 for her future loss of consortium. The jury also determined that $200,000 of the pain and suffering damages was attributable to the plaintiff’s failure to mitigate his damages. After deduction for failure to mitigate and the addition of stipulated medical expenses, the award totals about $1.29 million.